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Supreme Court Postpones Appeal, Defense Says U.S. Hid Evidence

September 14, 1989

JERUSALEM (AP) _ The Supreme Court granted a defense request Wednesday and postponed an appeal by a convicted Nazi war criminal, enabling his attorney to verify new evidence he claims was covered up by the United States.

The decision on John Demjanjuk’s appeal followed a 4 1/2 -hour session in which prosecutor Michael Shaked disputed that the Americans had hidden any evidence in the case.

The appeal before the five-justice panel was postponed from Nov. 1 to May 14, 1990.

Demjanjuk, 69, a retired auto worker from the Cleveland suburb of Seven Hills, was found guilty by an Israeli court in April 1988 of crimes against humanity and crimes against the Jewish people. He was sentenced to death.

Demjanjuk was convicted of being a Nazi guard known as ″Ivan the Terrible,″ who switched on the gas chambers in 1942-1943 at the Treblinka death camp, where 850,000 Jews perished.

But the Ukrainian-born Demjanjuk claims to be a victim of mistaken identity and testified at his trial that he was at two other Nazi prisoner of war camps during that period.

Demjanjuk attorney Yoram Sheftel told the court he had recently received new evidence that could help his client.

These included documents found several weeks ago in a garbage bin across the street from the Justice Department’s Office of Special Investigations (OSI) in Washington, Sheftel said. The office investigates alleged Nazi war criminals.

″Of course, we are delighted we have at least until May,″ said Ed Nishnic, Demjanjuk’s son-in-law and leader of the Cleveland-based John Demjanjuk Defense Fund. ″We’ll have the evidence needed to present to the Supreme Court. We hope to have further evidence we have identified that is still in the possession of the OSI.″

Sheftel said the papers were found after news from an ″inside leaker″ at the Justice Department. He declined to elaborate on his alleged informant.

One document is a memorandum of an interview with a former Nazi prison guard, Otto Horn, who failed to identify Demjanjuk in a photo lineup, contradicting evidence presented in court, Sheftel said.

The other memorandum, he said, concerned a Treblinka survivor named Rigrodsky, allegedly questioned before a 1981 trial to strip Demjanjuk of U.S. citizenship.

Sheftel said Rigrodsky had recounted being forced to play the violin for officers at the camp, including Demjanjuk, during a period when Demjanjuk was said by other witnesses to have been assigned to another camp.

″The accused is in effect shown in two places at the same time. But the court verdict never referred to this contradiction,″ Sheftel said.

Sheftel said he had heard there were also other documents withheld from Demjanjuk’ lawyers. He said he filed a motion Tuesday with the U.S. District Court in Washington to obtain this and other evidence from five important witnesses within 30 days.

The lawyer said the Justice Department office ″has been hiding, concealing and fabricating evidence.″ He argued that he needed at least another six months to pursue the paperwork.

Prosecutor Shaked accused Sheftel of using delay tactics. He said the court record showed the U.S. officials had answered numerous defense requests for information, and called the documents that Sheftel referred to ″working papers which have no power of evidence.″

The Justice Department has consistently refused to comment on the allegations, saying only that Demjanjuk’s 1986 deportation was upheld by U.S. courts.

After consulting more than an hour, the five judges postponed a ruling on the admissibility of the new evidence but agreed to delay the appeals date until May.

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